FELONY DISENFRANCHISEMENT – THE RACIST ROOTS

Abstract

In this article, the concept of felony disenfranchisement has been discussed. The degrees of felony disenfranchisement practised are also discussed. The historical development of the concept of felony disenfranchisement and how the concept developed racist roots at a later stage in its development have also been looked into.

“Suffrage is a civil right to either vote or exercise that right. The legitimacy of a democratic government is usually considered to be derived primarily from suffrage. One of the types of suffrage is Universal Suffrage. It is described as a situation where the right to vote is not restricted on the basis of race, sex, belief or status.”[1] However, with this, there also exists the concept of disenfranchisement.

Disenfranchisement or disfranchisement means “the state of being deprived of a right or privilege, especially the right to vote”. “Felony disenfranchisement refers to the practice of barring individuals who have been convicted of felony crimes from voting in political elections.”[2] There exist different degrees of felony disenfranchisement.

  • Selective Restrictions on Suffrage Rights: Here, the suffrage rights of the felons are restricted on a selective basis depending on various factors which include the type of crime committed along with the term of sentence to be served. Countries like Australia and France follow this type of felon disenfranchisement.
  • Ban on voting during prison sentence: Here, a total ban is imposed on the suffrage rights of the felons and they are not allowed to vote for the entire duration of their sentence and the type of crime committed has no effect on the restriction whatsoever. India and New Zealand impose such a ban on voting.
  • Total disenfranchisement: Here, the felons are not allowed to vote at all and are permanently disenfranchised. This type of disenfranchisement of felons is followed by the United States of America and Chile.

The roots of such disenfranchisement are racist in nature. Let’s understand and have a look at how this concept developed in general. Felon disenfranchisement has a long history, with origins in ancient Greece and Rome. In Greek city-states, a form of disenfranchisement was imposed on criminals who would lose many coveted citizenship rights along with the right to participate in the polity. In ancient Rome, there was a similar kind of punishment imposed on criminal offenders and punishments or penalties were usually the loss of suffrage and the right to serve in the Roman legions. Later, the concept developed further in Medieval Europe. The legal doctrines of ‘civil death’ and ‘outlawry’ were based on similar notions and basic principles. Those punished with civil death generally suffered complete loss of citizenship rights. “In Britain, outlawry stripped a criminal of his right to protection of the laws for his life and property.”[3]As the common law developed and the British colonised the world, their law went with them and were transplanted into the British colonies.

In United States of America, with the end of the Civil War and the expansion of suffrage to the blacks is what led to racism and barriers to the ballot. Lawmakers in the US designed laws in such a manner that they were stringent and targeted black citizens. Then as a second step to prevent votes of blacks to have a substantial effect on the outcome, they designed stringent and broad disenfranchisement laws which basically led to the revocation of voting rights for anyone who was a convicted felon. A study conducted by Angela Behrens, Christopher Uggen and Jeff Manza in 2003 found that felony bans in different states in the United States exploded in number during the late 1860s and 1870s. This particularly happened in the wake of the Fifteenth Amendment, which ostensibly guaranteed black Americans the right to vote. They further found that a state was more likely to pass stricter laws that permanently denied convicts the right to vote if the state has a higher black population. Thus, it can be seen that white supremacists used the loopholes in law to continue black oppression in an innovative way. It is to be noted that such white supremacists were pretty clear and vocal in their quest to exclude blacks from the ballots by manipulating the system.

In modern times, there are various theoretical arguments in favour and against felony disenfranchisement. Arguments in favour of disenfranchisement vary. A few of the arguments are on how civil death should be part of punishment, purity of ballot needs to be preserved, punishment can be used to form character. Contradictions to such arguments also exist. These are on how civil death being outdated, undermines the democratic polity, elected should not be allowed to decide electorate, convicts will be less inclined to obey laws that they have had no role in deciding upon and that it will be a rehabilitative process to allow prisoners and convicts to vote.

In India, the scenario is quite different. “India has disenfranchised sentenced prisoners. India being a common law country, the Commonwealth Franchise Act, 1902 was applied disqualifying the convicted persons who were undergoing sentence from voting. The provisions remained substantially the same when the Commonwealth Electoral Act, 1918 was enacted. The position remained unaltered until the Representation of People Act, 1950 and the Representation of Peoples Act, 1951 were enacted.”[4]It is common knowledge that India adopted various laws from the British and various laws were formed keeping the British laws as a draft while making minute changes and thus, in India, the concept of disenfranchisement does not particularly have specific racist roots like in the United States.

The Representation of Peoples Act, 1951 in its section 62(5) states: “No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.”[5] This provision helps India being one of the few countries that provides for a blanket ban on all prisoners from voting.

The Supreme Court of India, in the case of Anukul Chandra Pradhan v. Union of India[6], “while rejecting the petition seeking the right to vote for prisoners provided some reasons for why such a ban was in place:

  • Resource crunch as permitting every person in prison also to vote would require deployment of a much larger police force and greater security arrangements.
  • A person who is in prison as a result of his own conduct cannot claim equal freedom.
  • To keep persons with criminal background away from the election scene.”[7]

To conclude, over the years, the concept of felon disenfranchisement developed through the punishments given to criminal offenders. In places, the concept developed due to being colonised by the British and in the United States, the concept developed as a way to continue white supremacy and deprive the blacks of their political rights. In India, the concept has been challenged a few times in the Court of Law. However, the Apex Court stated a few reasons to continue with felon disenfranchisement.

REFERENCES

  • Anukul Chandra Pradhan v. Union of India, AIR 1997 SC 2814.
  • Baljeet Kaur, Prisoners’ Right to Vote: Citizen without a Vote in a Democracy Has No Existence, EPW Engage.
  • Erin Kelly, Racism and Felony Disenfranchisement: An Intertwined History, Brennan Center for Justice.
  • George Brooks, Felon Disenfranchisement: Law, History, Policy and Politics, Fordham Urban Law Journal, Vol. 32 No. 5 (2005).
  • Kavita Singh, Civil Death of Prisoner: Disenfranchising the Prisoner in Reality Causes his Civil Death. (2008) 1 NUJS L Rev 239
  •   Felony Disenfranchisement: A Pertinent Issue in the Election Season, Human Rights Communique, Vol. V Issue III, RGNUL accessed at https://www.rgnul.ac.in/PDF/0e6cab38-4027-43e6-b2b5-be5c69b00b16.pdf

[1]Kavita Singh, Civil Death of Prisoner: Disenfranchising the Prisoner in Reality Causes his Civil Death.

(2008) 1 NUJS L Rev 239

[2]Felony Disenfranchisement: A Pertinent Issue in the Election Season, Human Rights Communique, Vol. V Issue III, RGNUL accessed at https://www.rgnul.ac.in/PDF/0e6cab38-4027-43e6-b2b5-be5c69b00b16.pdf

[3]George Brooks, Felon Disenfranchisement: Law, History, Policy and Politics, Fordham Urban Law Journal, Vol. 32 No. 5 (2005), pp. 851.

[4] Supra note 1.

[5] Section 62(5), The Representation of Peoples Act, 1951

[6] Anukul Chandra Pradhan v. Union of India, AIR 1997 SC 2814.

[7] Baljeet Kaur, Prisoners’ Right to Vote: Citizen without a Vote in a Democracy Has No Existence, EPW Engage, accessed at https://www.epw.in/engage/article/prisoners-right-vote-citizen-without-vote

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